Parmar Samantsinh Umedsinh and Others vs State of Gujarat & Ors.

5 of Rules, 1994 and Rule 2(b) of Rules, 2007 are not ultra vires to Part IXA of the Constitution, the Division Bench of the High Court did not commit any error in dismissing the writ petition filed by the appellants – Hence, the first civil appeal and Writ Petition are dismissed – The civil appeal filed by the State Election Commission is dismissed as having become infructuous as the directions of the Division Bench to initiate process of holding the election of the local bodies was carried out and nothing remains to be decided in this appeal.

Constitution of India – Art 243R and 243S – Whether Arts. 243R and Art. 243S of the Constitution of India contains any limitation to the effect that there shall be only one member from one ward – Held: The constitutional provisions of Art. 243R, which provides for composition of Municipalities and that of Art. 243ZA does not give any indication as to whether from territorial constituency, i.e., the Wards, whether only one member has to be elected in the Municipality or it can be multiple member constituency – There is no limitation in provision of Art. 243S, which limits the State Legislature for requiring multi-member seats in a Ward – The only requirement is that a member of the Municipality representing a Ward shall be a member of the Ward Committee – Thus, constitutional requirement or limitation engrafted in sub-Article(3) of Art. 243S is that a member of the Municipality representing a Ward shall be a member of the Ward Committee, it cannot be read to mean that it mandates that from one Ward more than one members cannot be made representatives.

Gujarat Provincial Municipal Corporation Act, 1949 – ss. 5(3)(iii)(a), 29A – Bombay Provincial Municipal Corporations (the delimitation of wards and allocation of reserved seats) Rules, 1994 – rr. 4 and 5 – Gujarat Municipal Corporation’s Ward Committees Functions, Duties, Territorial Areas and Procedure for Transaction of Business Rules, 2007 – r. 2(b) – Whether the provisions of ss. 5(3)(iii)(a), 29A of the Gujarat Provincial Municipal Corporation Act, 1949 and Rules 4 and 5 of Bombay Provincial Municipal Corporations (the delimitation of wards and allocation of reserved seats) Rules, 1994 and Rule 2(b) of Gujarat Municipal Corporation’s Ward Committees Functions, Duties, Territorial Areas and Procedure for Transaction of Business Rules, 2007 are ultra vires to the provisions of Articles 243R and 243S of the Constitution? – Held: The composition of Municipality has been dealt separately by Art. 243R and for composition of Municipality, the provisions of Art. 243S cannot be said to be applicable or intended to provide any limitation or prohibition with regard to composition of the Municipalities – The Rule 2(b) of Rules, 2007 which provides for election of Chairperson, by following which rule, in case of multimember Ward, Chairperson can be elected, which may apply both to Art. 243S(4) as well as Rule 2(b) of the Rules, 2007 – Thus, Rules 4 and 5 of Rules, 1994 as well as Rule 2(b) of Rules, 2007 does in no manner disobey the mandate of Art. 243S(4), both can be complied with without any conflict between the two different provisions – Thus, the provisions of s. 5(3)(iii)(a) as well as Rules

4 and 5 of Rules, 1994 and Rule 2(b) of Rules, 2007 are not inconsistent with provisions of Art. 243R and Art.243S.

The Gujarat Delimitation of Wards and Allocation of Reserved Seats in Municipal Borough Rules, 1994 – Whether having more than one representative from a Ward negates the empowerment of weaker sections, i.e. women, Schedule Castes and Schedule Tribes – Held: The Gujarat Delimitation of Wards and Allocation of Reserved Seats in Municipal Borough Rules, 1994 has been amended by Amendment Rules, 2015 – As per clauses 2 and 3, now it is 4 member Ward, 2 seats are to be reserved for women including seats reserved for women belonging to Scheduled Castes, Scheduled Tribes and Back Ward Classes – The entire purpose and object of reserving seats for weaker sections is to empower the weaker sections, i.e., women, Scheduled Castes and Scheduled Tribes, when there are more numbers are reserved for weaker sections their participation in municipality is bound to increase giving strength to their voice and effective participation which is nothing but empowerment of weaker sections – By the Rules, 1994 as amended in 2015 now the voice of weaker sections can be felt from every Ward which clearly enhances of presence and participation of weaker sections does not in any manner, negate the empowerment of weaker sections.

Disposing of the appeals, this Court

HELD: 1. Both these questions being interrelated are being taken together:

i. Whether Article 243R and Article 243S of the Constitution of India contains any limitation to the effect that there shall be only one member from one Ward?

ii. Whether the provisions of Sections 5(3)(iii)(a), 29A of the Gujarat Provincial Municipal Corporations Act, 1949 and Rules 4 and 5 of Bombay Provincial Mu- nicipal Corporations (the delimitation of wards and allocation of reserved seats) Rules, 1994 and Rule 2(b) of Gujarat Municipal Corporation’s Ward Committees Functions, Duties, Territorial Areas and Procedure for Transaction of Business Rules, 2007 are ultra virus to the provisions of Articles 243R and 243S of the Constitution? Article 245, which deals with distribution of legislative powers, begins with the words “subject to the provisions of this Constitution”. Thus, laws made by the Parliament and by the Legislature of the State, have to be subject to the provisions of the Constitution. Article 246 deals with subject-matter of the laws made by the Parliament and by the Legislature of the State. Reading Articles 245 and 246 together, it is abundantly clear that the legislative power to be exercised by the Parliament and the State Legislatures as enumerated in List I, List II and List III of Seventh Schedule are subject to the provisions of the Constitution. Thus, when the Constitution expressly or impliedly contains a limitation in exercise of legislative power, the legislative power is subject to such Constitution limitations. For example, Article 13(2) contains a limitation that State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this clause shall, to the extent of the contravention, be void. [Paras 22, 32, 33][108-A-C; 111-G-H; 112-B-D]

2. Article 243ZF provides that any law relating to municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of Part IXA, shall not continue beyond expiration of one year from commencement of the constitutional amendment. Thus, Part IXA of the Constitution categorically contemplated that any law made by State Legislature, which is inconsistent with the provisions of Part IXA shall cease to operate on the expiration of one year or till amended or repealed by a competent Legislature, whichever is earlier. The Constitution provisions, thus, mandates that any law of the State, which is inconsistent, cannot continue. Thus, this limitation shall also govern any law made after enforcement of Constitution (Seventy-fourth Amendment) Act. Thus, a law, which is inconsistent with Part IXA cannot be framed by the State Legislature. [Para 36][113-H; 114-A-C]

3. One of the meanings of expression “inconsistent” as approved by this Court is mutually repugnant or contradictory. Article 254 of the Constitution contains a heading “inconsistency between laws made by the Parliament and the laws made by the Legislature of the State” whereas under Article 254(1) and Article 254(2) the words used are repugnant. The Constitution itself, thus, has used the words inconsistency and repugnancy interchangeably. To find out as to whether a law made by State Legislature is inconsistent with provisions of Part IXA of the Constitution, the principles which have been laid down by this Court to determine the repugnancy between the law made by the Legislature of a State and law made by Parliament can be profitably relied on. This Court, thus, need to notice the principles on which the repugnancy of law made by State and law made by the Parliament is found out. [Para 38][114-E-G]

4. The Constitution of India is a paramount law to which all other laws are subject. One of the important tests to find out as to whether or not there is repugnancy is to ascertain the intention of the Legislature regarding the fact that the dominant Legislature allowed the subordinate Legislature to operate in the same field paripasu the State Act and there will be no inconsistency when the State Act and Central Act are supplemental to each other. Things are inconsistent when they cannot stand together at the same time and one law is inconsistent with another law, when the command or power or provision in the law conflicts directly with the command or power or provision in the other law. While legislating on a particular subject matter, the paramount Legislature may evince the intention to cover only certain specific matters leaving it to the State Legislature to deal with the rest. One more preposition need to be noticed is that there is always a presumption that Legislature does not exceed its jurisdiction and Court should make every attempt to reconcile the provisions of apparently conflicting enactment. [Para 39] [114-H; 115-A-C]

5. Sub-article(1) of Article 243R contains two constitutional requirements:- (i) all the seats in a Municipality shall be filled by persons chosen by direct election and (ii) from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards. Sub-article (2) of Article 243R provided for the representation in a municipality of four categories of persons which is a constitutional requirement required to be adopted by State Legislature. It may be noted that sub-article (2) of Article 243R does not deal with seats in the Municipalities, which shall be filed up by persons chosen by direct election. Article 243ZA deals with elections to the Municipalities, thus, direct election, as contemplated under Article 243R has to be as per Article 243ZA. [Para 49][119-F-H]

6. Thus, the Legislature of a State may by lay has to provide all matters relating to or in connection with election to the Municipalities, which includes filling of the seats in the Municipality by person chosen by direct election. Articles 243R and 243ZA does not give any indication as to whether from territorial constituency, i.e., the Wards, whether only one member has to be elected in the Municipality or it can be multiple member constituency. The constitutional provisions of Article 243R, which provides for composition of Municipalities and that of Article 243ZA does not give any indication to the above. The provisions of Article 243ZG, which deals with bar to interference by courts in electoral matters throws some light. Article 243ZG(a) used two expressions: “any law relating to the delimitation of constituencies or the allotment of seats to such constituencies” may be read as allotment of more than one seat to one constituency but it can be said that the above provision also do not provide that in one constituency, there may be more than one seats. Article 243S deals with Constitution and Composition of Wards Committees. [Paras 50, 51, 52][120-B-D, F-G]

7. When carefully analysed the extent and purpose of Article 243S, this court does not find any such limitation in provision of Article 243S, which limits the State Legislature for requiring multi-member seats in a Ward. Reverting to sub-article (3) of Article 243S, the requirement is that a member of the Municipality representing a Ward shall be a member of the Ward Committee. Thus, constitutional requirement or limitation engrafted in subarticle(3) is that a member of the Municipality representing a Ward shall be a member of the Ward Committee. The provision of Article 243S(3) is not a provision regarding composition of Municipality rather the provision is for constitution and composition of Wards Committee. In Wards Committee, a member representing a Ward in Municipality has to be the member. Sub-article(3) of Article 243S cannot be read to mean that it mandates that from one Ward more than one members cannot be made representatives. In cases, where there are more than one member from one Ward all will become the member of the Committee. When all the members of the Municipality representing a Ward are members of the Committee, there is no breach of Article 243S(3). [Para 53][121-G-H; 122-A-C]

8. This court may now examine, if there are multi-members in one ward, whether Constitutional provisions of Article 243S(4) are breached when Chairperson is to be elected. The requirement is that member representing the Ward shall be the Chairperson of the Committee and if there are more than one members and one member out of multi-member Ward is elected as Chairperson, the provision of Article 243S(4) shall be applied. When the constitutional provisions under Article 243S(4)(a) does not provide for election for electing Chairperson in case of a multimember Ward, the same is supplemented by the State legislation. In the present case, this court noticed that Rule 2(b) of Rules, 2007, which provides that Chairperson of a Ward Committee is the person elected by the members of the Wards Committee. The Rule, thus, contemplate an election of Chairperson amongst the members of the Wards Committee, which shall also be applicable in a case where there are more than one members from one Ward. When out of multiple members in a Ward, one member is elected as Chairperson, the mandate of Article 243S(4)(a) is complied with. The requirement is that member representing the ward in the Municipality shall be the Chairperson. The above provision cannot be read in providing any prohibition or limitation that in one Ward, there cannot be more than one member. The composition of Municipality has been dealt separately by Article 243R and f or composition of Municipality, the provisions of Article 243S cannot be said to be applicable or intended to provide any limitation or prohibition with regard to composition of the Municipalities. The Rule 2(b) of Rules, 2007 which provides for election of Chairperson, by following which rule, in case of multi-member Ward, Chairperson can be elected, which may apply both to Article 243S(4) as well as Rule 2(b) of the Rules, 2007. Thus, Rules 4 and 5 of Rules, 1994 as well as Rule 2(b) of Rules, 2007 does in no manner disobey the mandate of Article 243S(4), both can be complied with without any conflict between the two different provisions. This Court, thus, come to the conclusion that provisions of Section 5(3)(iii)(a) as well as Rules 4 and 5 of Rules, 1994 and Rule 2(b) of Rules, 2007 are not inconsistent with provisions of Article 243S. [Para 55][122-F-G; 123-A-D]

9. This Court has analyzed the provisions of Article 243R, 243S and have come to the definite conclusion that no limitation in Article 243S can be found of which contains any prohibition of having more than one member for a Ward. When the State Legislature has been given preliminary power of legislation with regard to composition of the Municipalities, there has to be express or implied limitation, which may prohibit the State Legislature to make a law providing for multi-member Ward. [Paras 59, 61][125-E-F; 126-F-G]

10. This Court, in the present case, after analysing the relevant provisions of Part IXA of the Constitution has come to the conclusion that there is no prohibition or limitation in Part IXA of the Constitution prohibiting the State Legislature from making a law providing for election of more than one member from one territorial constituency, i.e., Ward. This Court, thus, answer Question Nos. i and ii in following manner:-

(1) Article 243R and 243S of the Constitution of In dia does not contain any limitation to the effect that there shall be only one member from one Ward.

(2) Provisions of Section 5(3)(iii)(a) and Section 29A of the Act, 1949 and Rules 4 and 5 of the Rules, 1994 and Rule 2(b) of Rules, 2007 are not ultra vires to the provisions of Articles 243R and 243S of the Constitution.[Para 63][127-D-F] iii) Whether having more than one representative from a Ward negates the empowerment of weaker sections, i.e., women, Scheduled Castes and Scheduled Tribes?

11. The entire purpose and object of reserving seats for weaker sections is to empower the weaker sections, i.e., women, Scheduled Castes and Scheduled Tribes, when there are more numbers are reserved for weaker sections their participation in municipality is bound to increase giving strength to their voice and effective participation which is nothing but empowerment of weaker sections. This court is not able to subscribe to the submission that when there are only one representation from one Ward only then empowerment of weaker sections can be made. By the Rules, 1994 as amended in 2015 now the voice of weaker sections can be felt from every Ward which clearly enhances of presence and participation of weaker sections and does not, in any manner, negate the empowerment of weaker sections. This Court, thus, do not find any substance in the above submission. This Court answer Question No.iii) in the following manner: Having more than one representation from a Ward in no manner negates the empowerment of weaker sections rather it increases the empowerment of weaker sections. [Paras 69, 70][129-G-H; 130-A-C]

iv) Whether when the draft rules for amendment of Bombay Provincial Municipal Corporations (the delimitation of wards and allocation of reserved seats) Rules, 1994 were issued on 27.11.2014 which were to be published after noting of objections on or expiry of thirty days, the State Government could have issued notification dated 04.12.2014 before expiry of thirty days?

12. A perusal of the above notification indicates that the said notification was a draft notification to amend the Delimitation of Wards and Allocation of Reserved Seats (Amendment) Rules, 2014 wherein Rule 4, for the word “three”, the word “four” was sought to be substituted. The notification dated 04.12.2014 has been issued in exercise of powers conferred by sub-clause (a) of clause (iii) of sub-section (3) of Section 5 of Act, 1949. A bare perusal of the notification dated 04.12.2014 indicates that the said notification is not in reference to the notification dated 27.11.2014 rather the said notification was issued regarding determination of number of Wards and Councillors’ seats reserved for Scheduled Castes and Scheduled Tribes and women. Thus, the argument that notification dated 04.12.2014 issued before expiry of 30 days is wholly misconceived. The appellants themselves have brought on record a notification dated 15.01.2015 as Annexured to the paper book which is the notification issued in reference to the notification dated 27.11.2014. [Paras 72, 73 and 74][132-C-D; 134-B-C]

13. Thus, in reference to notification dated 27.11.2014, the notification was issued on 15.01.2015, Rules, namely, Bombay Provincial Municipal Corporation (Delimitation of Wards in the City and Allocation of Reserved Seats) (Amendment) Rules, 2015 were issued which specifically mentioned that objections and suggestions in pursuance of draft have been considered by the Government. Thus, this court does not find any infirmity in the above notification.[Para 75][134-G-H]

Civil Appeal (arising out of SLP(C)No.30635 of 2015-State Election Commission vs. Virendrasinh Mafaji Vaghela & Ors.)

15. The appeal has been filed against the Division Bench judgment of the Gujarat High Court dated 21.10.2015 by which writ petition filed by the respondents was allowed. The High Court found the Ordinance No.3 of 2015 as unconstitutional and void. The action of the State Election Commission for postponement of the election of all local bodies in the State was held to be illegal and set aside. The State Election Commission was directed to initiate process of holding the election of the local bodies forthwith. In pursuance of the Division Bench judgment of the High Court dated 21.10.2015 Elections for the local bodies were held in November/December, 2015. The direction of the Division Bench dated 21.10.2015 having been carried out nothing remains to be decided in this appeal. The tenure of the Local Body constituted in pursuance of the impugned direction of the High Court dated 21.10.2015 having come to end, this Court see no necessity to enter into issue raised in this appeal. Thus, the appeal is dismissed as having become infructuous. [Para 78][135D-F]

Ch. Tika Ramji and Others, etc. v. The State of Uttar Pradesh and Others, AIR 1956 SC 676 : [1956] SCR 393; Maharaj Umeg Singh and Ors. v. State of Bombay and Ors., AIR 1955 SC 540 : [1955] SCR 164; Jindal Stainless Limited and Anr. v. State of Haryana and Ors., (2017) 12 SCC 1 : [2016] 10 SCR 1; Deep Chand and Ors. v. The State of Uttar Pradesh and Ors., AIR 1959 SC 648 : [1959] Suppl. SCR 8; M. Karunanidhi

Vs.Union of India and Anr., (1979) 3 SCC 431 : [1979]

3 SCR 254; K.T. Plantation Private Limited and Anr. Vs. State of Karanataka, (2011) 9 SCC 1 : [2011] 13 SCR 636 – followed.

Basti Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Anr., (1979) 2 SCC 88 : [1979] 1 SCR 590; M/s. Ram Chandra Mawa Lal, Varanasi and Ors. v. State of Uttar Pradesh and Ors., (1984) Suppl. SCC 28 : [1984] SCR

348 – relied on.

Manoj Narula v. Union of India, (2014) 9 SCC 1 : [2014] 9 SCR 965; Chief Justice of Andhra Pradesh and Others v. L.V.A. Dixitulu and Ors., (1979) 2 SCC

34 : [1979] 1 SCR 26; M.T. Khan and Ors. v. Govt. of A.P. and Ors., (2004) 2 SCC 267 : [2004] 1 SCR 117; Karnataka Bank Ltd. v. State of Andhra Pradesh and Ors., (2008) 2 SCC 254 : [2008] 1 SCR 986;

Kasambhai F. Ghanchi v. Chandubhai D. Rajput and Others, (1998) 1 SCC 285 : [1997] 5 Suppl. SCR 401 – referred to.

Pankajsinh Waghela v. State Election Commission through Election Commissioner & Others (Special Civil Application No.12084 of 2015) – referred to.